The Criminalization of Safety (Part 1)

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Nuclear safety management and culture relies on nuclear personnel conducting themselves in accordance with espoused values and making safety the highest priority.  When failures occur individual workers may be (and often are) blamed but broader implications are generally portrayed as an organizational culture deficiency and addressed in that context.  

Only rarely does the specter of criminality enter the picture, requiring a level of malfeasance - intentional conduct or recklessness - that is beyond the boundaries of conventional safety culture. 

The potential for criminal liability raises several issues.  What is the nexus between safety culture and criminal behavior?  What is the significance of the increased frequency of criminal prosecutions following major accidents or scandals in nuclear and other industries?  And where does culpability really lie - with individuals? culture? the corporation? or the complex socio-technical systems within which individuals act?

If one has been paying close attention to the news fairly numerous examples of criminal prosecutions involving safety management issues across a variety of industries and regulatory bodies is occurring.  It is becoming quite a list of late.  We thought this would be an appropriate time to take stock of these trends and their implications for nuclear safety management.

Recent Experience

We have prepared a table* summarizing relevant experience from the nuclear and other high risk industries.  (The link is to a pdf file as it is impractical to display the complete table within this blog post.)  Below is a table snippet showing a key event: the criminal prosecutions associated with the Davis Besse reactor vessel head corrosion in 2001/2002. First Energy, the owner/operator, pleaded guilty to criminal charges and two lower level employees were found guilty at trial.  A third individual, a contractor working for First Energy, was acquitted at trial.

More currently high level executives of TEPCO, the owner/operator of the Fukushima plant in Japan, were charged, though the circumstances are a bit odd.  Prosecutors had twice declined to bring criminal charges but were ultimately overruled by a citizens panel.  The case is expected to be difficult to prove.  Nonetheless this is an attempt to hold the former TEPCO Chairman and heads of the nuclear division criminally accountable.

The only other recent examples in the U.S. nuclear industry that we could identify involved falsification of documents, in one instance by a chemistry manager at Indian Point and the other a security officer at River Bend.**  One has pleaded guilty and sentenced to probation; the other case has been referred to the U.S. Department of Justice (DOJ).

Looking beyond nuclear, the picture is dominated by several major operational accidents - the Deepwater Horizon drill rig explosion and the explosion of the Upper Big Branch coal mine owned by Massey Energy.  Deepwater resulted in guilty pleas by the three corporations involved in the drilling operation - BP, Transocean and Halliburton - with massive criminal and civil fines.  BP’s plea included felony manslaughter.  Several employees also faced criminal charges.  Two faced involuntary manslaughter charges in addition to violations of the Clean Water Act.  The manslaughter charges were later dropped by prosecutors.  One employee pleaded guilty to the Clean Water Act violations and was sentenced to probation, the other went to trial and was acquitted.

The Massey case is noteworthy in that criminal charges ultimately climbed the corporate ladder all the way to the CEO.  Ultimately he was acquitted of felony charges of securities fraud and making false statements, but he “was convicted of a single count of conspiring to violate federal safety standards; he was not convicted of any count holding him responsible for the 2010 accident at the Upper Big Branch mine.”***  It “is widely believed to be the first CEO of a major U.S. corporation to be convicted of workplace safety related charges following an industrial accident.”****  Three other individuals also pleaded or were found guilty of misdemeanor charges.

Next up are the auto companies, GM, Volkswagen and Mitsubishi.  The GM scandal involved the installation of faulty ignition switches in cars that subsequently resulted in a number of deaths.  GM entered into a plea agreement with DOJ admitting criminal wrongdoing and paid large monetary fines.  As of this time no criminal charges have been brought against GM employees.  VW and Mitsubishi have both admitted to manipulating fuel economy and emissions testing and there is speculation that other auto manufacturers could be in the same boat.  The investigations are ongoing at this time but criminal pleas at the corporate level are all but certain.

Last in this pantheon is the city of Flint water quality scandal.  The Attorney General of Michigan recently filed criminal charges against three individuals and promised “more charges soon”.  The interesting aspect here is that the three charged are all government workers - one for the city and two for the Michigan Department of Environmental Quality.  And the two state officials have been charged with misconduct in office, a felony.  Essentially regulators are being held accountable for their oversight.  As David Ullmann, a former chief of DOJ’s environmental crimes section, stated, “It’s extremely unusual and maybe unprecedented for state and local officials to be charged with criminal drinking water violations.”  This bears watching.

In Part 2 we will analyze the trends in these cases and draw some insights into the possible significance of efforts to criminalize safety performance.  In Part 3 we will offer our observations regarding implications for nuclear safety management and some thoughts on approaches to mitigate the need for criminalization.


*  Criminal Prosecutions of Safety Related Events (May 22, 2016).

**  We posted on the Indian Point incident on May 12, 2014 and the River Bend case on Feb. 20, 2015.

***  A. Blinder, "Mixed Verdict for Donald Blankenship, Ex-Chief of Massey Energy, After Coal Mine Blast," New York Times (Dec. 3, 2015 corrected Dec. 5, 2015).

****  K. Maher, "Former Massey Energy CEO Sentenced to 12 Months in Prison," Wall Street Journal (April 6, 2016).  The full article may only be accessible to WSJ subscribers.

Fixing General Motors’ Culture—Any Lessons for Nuclear?

GM Headquarters

In a recent interview* with LinkedIn, General Motors CEO Mary Barra discussed her plan for fixing GM’s culture.  The interviewer asked what needs to change, what about known problems like the “GM nod”** and the siloed organization, and what is the key to the improvement process?  The following quotes are excerpted from her answers.  Do they suggest a clear vision for the future culture and/or a satisfactory action plan?

“. . . get everyone engaged, working together, and bringing the best ideas forward[.]”

“. . . I never accepted the GM nod.  If somebody said in a meeting they were going to do something, I expect you to do it.”

“We've got to model [working across the organization].”

“[We have to] own each other's problems.”

“So our goal is to be the safety leader. We're really driving a zero-defect mentality.”

“If we can get in a room and really, you know, argue it out constructively and everybody's views get on the table, we'll make better decisions.”

“. . . we've got to earn the trust of every single employee by demonstrating the way we behave.”

Our Perspective

We realize this was not some carefully crafted article for the Harvard Business Review but there are too many soft spots in this recipe for fixing the culture to let this interview slide by without comment.

Let’s begin with the positives.  Barra promotes respect for ideas; that’s a positive feedback loop and a good thing.  Senior management modeling desired behavior and working to earn employee trust are both essential for cultural change.  Safety leadership is certainly a laudable goal.  

The nod is a little more problematic.  Maybe Barra never accepted the nod but plenty of other folks did.  Is modeling the desired behavior sufficient to create change?  How long will it take?  What else might need to be done?

Shared ownership of problems is a good start but how does GM establish, model and inculcate a process that obtains permanent problem resolutions going forward?

Barra also believes an insider (like her) is better suited for changing the culture than an outsider.  We agree an insider may have a better handle on recognizing when employees are trying to spin a situation in their favor but an outsider can bring a clear view of the performance gap between an organization’s current state (e.g., its characteristics, priorities and processes) and where it needs to be.

Some ingredients are missing.  Most importantly, there is no mention of the powerful cost/finance feedback loop that contributed to GM’s quality problems.  Wringing pennies out of product costs was a major goal for years.  What roles will cost consciousness and management financial incentives play going forward?

In another area, how is the management decision making process changing other than arguing things out?

Bottom line: There are no lessons for nuclear in the GM CEO’s outline of her cultural change initiative.  In fact, her proclamations sound just like nuclear managers’ braying when they try to convince regulators, the media and the public that something, anything is happening to address perceived cultural issues.  But what usually isn’t happening is some in-depth analysis of how their organizational system functions.


*  D. Roth, “Mary Barra's Got a Plan for Fixing GM's Culture (and Only an Insider Can Pull it Off),” LinkedIn interview (July 6, 2015).  Safetymatters co-founder Bob Cudlin first spotted and called attention to this article.

**  The “GM nod” was “where employees would commit to being on board with a decision, then ignore it [later.]”

Reaction to the Valukas Report on GM Ignition Switch Problems

CEO Mary Barra and Anton Valukas

General Motors released the report* by its outside attorney, Anton Valukas, investigating the hows and whys of the failure to recall Chevy Cobalts due to faulty ignition switches.  We blogged on these issues and the choice of Mr. Valukas on May 19, 2014 and May 22, 2014 indicating our concern that his law firm had prior and ongoing ties to GM.  The report is big, 314 pages, and for some reason is marked as “Confidential, Attorney-Client Privileged”.  This is curious for a report always intended to be public and tends to highlight that Valukas and GM are in a proprietary relationship - perhaps not the level of independence one might expect for this type of assessment.

Our take, in brief, is that the Valukas report documents the "hows" but not the "whys" of what happened.  In fact it appears to be a classic legal analysis of facts based on numerous interviews of “witnesses” and reviews of documentation.  It is heavy with citations and detail but it lacks any significant analysis of the events or insight as to why people did or did not do things.  “Culture” is the designated common mode failure.  But there is no exploration of extent of condition or even consideration of why GM’s safety processes failed in the case of the Cobalt but have been effective in many other situations.  Its recommendations for corrective actions by GM are bland, programmatic and process intensive, and lack any demonstrable linkage to being effective in addressing the underlying issues.  On its part GM has accepted the findings, fired 15 low level engineers and promised a new culture.

The response to the report has reflected the inherent limitations and weaknesses of the assessment.  There have been many articles written about the report that provide useful perspectives.  An example is a column in the Wall Street Journal by Holman Jenkins titled “GM’s Cobalt Report Explains Nothing."**  In a nutshell that sums it up pretty well.  It is well worth reading in its entirety.

Congressional response has also been quite skeptical.  On June 18, 2014 the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, held a hearing with GM CEO Barra and Valukas testifying.  A C-SPAN video of the proceeding is available and is of some interest.***  Questioning by subcommittee members focused on the systemic nature of the problems at GM, how GM hoped to change an entrenched culture, and the credibility of the findings that malfeasance did not extend higher into the organization.

The Center for Auto Safety, perhaps predictably, was not impressed with the report, stating: “The Valukas Report is clearly flawed in accepting GM’s explanation that its engineers and senior managers did not know stalling was safety related.”****

Why doesn’t the Valukas report explain more?  There are several possibilities.  Mr. Valukas is an attorney.  Nowhere in the report is there a delineation of the team assembled by Mr. Valukas or their credentials. It is not clear if the team included expertise on complex organizations, safety management or culture.  We suspect not.  The Center for Auto Safety asserts that the report is a shield for GM against potential criminal liability.  Impossible for us to say.  Congressional skepticism seemed to reflect a suspicion that the limited scope of the investigation was designed to protect senior GM executives.  Again hard to know but the truncated focus of the report is a significant flaw.

What is clear from these reactions to the report is that, at a minimum, it is ineffective in establishing that a full and expert analysis of GM’s management performance has been achieved.  Assigning fault to the GM culture is at once too vague and ultimately too convenient in avoiding more specific accountability.  It also suggests that internally GM has not come to grips with the fundamental problems in its management system and decision making.  If so, it is hard to believe that the corrective actions being taken will be effective in changing that system or assuring better safety performance going forward.


*  A.R. Valukas, "Report to Board of Directors of General Motors Company Regarding Ignition Switch Recalls" (May 29, 2014).

**  H.W. Jenkins, Jr., "GM's Cobalt Report Explains Nothing," Wall Street Journal (June 6, 2014).

***  C-SPAN, "GM Recall Testimony" (June 18, 2014).  Retrieved June 26, 2014.

****  C.Ditlow (Center for Auto Safety), letter to A.R. Valukas (June 17, 2014), p. 3.  Retrieved June 26, 2014.

GM Part 3 - Lawyers, Decision Making and...Simulation?

The GM story continues to unfold on a daily basis.  We’ve already lost track of the number of recalls as it appears that any and every possible safety defect from prior years has been added to the recall list.  This is reminiscent of the “problem” nuclear plants in the 1990s - NRC mandated improvement programs precipitated an avalanche of condition reports into the plants’ Corrective Action Programs, requiring immense resources and time to sort out and prioritize the huge volume of issues.

In our prior post on GM product safety issues, we critiqued the structure of management’s independent review being conducted by attorney Anton Valukas based in part on the likelihood that GM’s legal department would be a subject of the review.  Asking the chairman of a law firm with a long standing relationship with GM, to pull this off seemed, at a minimum, to be unnecessary, and potentially could undermine the credibility of the assessment.  Now we see in further reporting of the GM issues by the New York Times* that in fact GM’s lawyers are becoming a key focus of the investigation.  The implication is that GM’s lawyers may have been the gate keepers on information related to the Cobalt ignition switches and/or been enablers of a decision process that did not result in aggressive action.

Of greater interest is the Consent Order** entered into by GM and the United States Department of Transportation, National Highway Traffic Safety Administration.  The headline was the $35 million civil penalty but there were more interesting nuggets within the order.  Among a series of required actions by GM to improve timeliness and data to support safety defect evaluations were three actions specifically focusing on safety decision making.  One is to ensure that safety issues are expeditiously brought to the attention of “committees and individuals with authority to make safety recall decisions.” (p. 10)***  Second, GM will have to meet with the NHTSA on a monthly basis for one year to review its decision making on potential safety issues.  And third,

“GM shall meet with NHTSA no later than 120 calendar days after execution of this Consent Order to conduct simulations—i.e., an exercise to discuss hypothetical scenarios, for the purpose of assessing the effectiveness of the improvements [in processes and analytics to identify safety-related defects]…” (p. 9, emphasis added)  We find the emphasis of the Consent Order both fascinating and appropriate.  It emphasizes decision making - the process, timeliness, engagement of appropriate participants, and transparency - as essential to assuring appropriate outcomes.  It opens that process to scrutiny by the NHTSA through monthly reviews of actual decisions.  And most strikingly, it requires the conduct of decision simulations to verify the effectiveness of the improvements.

The provisions of the Consent Order establish a fundamentally new and better approach to rectifying deficiencies in safety performance and are consistent with themes we have been advocating for some time.  It departs from the simplistic - blame some individuals, reinforce expectations, emphasize values and improve processes - catechism that is pursued within the nuclear industry and others as well.  It seems to recognize that safety related decisions constitute the essence of assuring safety.  Rather than just reviewing and investigating bad outcomes, the Consent Order opens the door to making the results of all ongoing decisions transparent and reviewable.  Further it even calls for practicing the decision making process - through simulations - to verify the effectiveness of the process and the results.  Practicing complex and nuanced safety decisions to improve the process and decision making skills - what an idea.

It is no news flash to our readers that we have not only advocated these approaches, we have developed prototype tools for these purposes.  We have made the NuclearSafetySim simulation tool available for almost a year via this blog and linked to its website.  What has been the result?  While it is clear there have been many viewings of these materials, there has not been a single inquiry or follow-up by the nuclear industry, the NRC or INPO.****  At the same time there have been no initiatives within those groups to develop new or improved tools and methods for improving safety management.  Why?


*  B. Vlasic, “Inquiry by General Motors Is Said to Focus on Its Lawyers,” New York Times (May 17, 2014).  Retrieved May 22, 2014. 

**  Consent Order between the National Highway Traffic Safety Administration and General Motors Company re: NHTSA’s Timeliness Query TQ14-001 (May 16, 2014).

***  Including GM’s Executive Field Action Decision Committee and Field Performance Evaluation Recommendation Committee. (p. 9)

****  Ironically, the only serious interest has been expressed within the oil/gas industry which appears much more open to exploring innovative approaches.

GM Part 2

In our April 16, 2014 post we discussed the evolving situation at General Motors regarding the issues with the Chevy Cobalt’s ignition switches.  We highlighted the difficulties GM was encountering in piecing together how decisions were made regarding re-design and possible vehicle recalls, and who in the management chain was involved and/or aware of the issues.  As we noted, GM had initiated an internal investigation of the matter with the results expected by late May.

In a recent Wall Street Journal article* there is some further perspective on how things are moving forward.  For one, the GM Board has now instituted its own investigation of how information flowed to the Board and how it affected its oversight function.  An outside law firm is conducting that investigation.

Perhaps of more interest are some comments in the article regarding the separate investigation being conducted on behalf of GM’s management.  It is being conducted by a former U.S. attorney, Anton Valukas, who also happens to be Chairman of the law firm Jenner & Block.  The WSJ article notes “some governance experts have questioned whether Mr. Valukas has enough of an arm's-length relationship with GM management. Jenner & Block has long advised GM management.”  It does seem to raise a basic conflict of interest issue, providing legal services to GM and conducting an independent investigation.  But a source quoted in the WSJ article notes that GM does not see a problem since “Mr. Valukas' own integrity is on the line…”

In terms of the specific situation it seems fairly clear to us that Valukas should not be performing the investigation on behalf of management.  The Board of Directors should have initiated the primary investigation using an independent outside firm - essentially what it has now done but which is limited to the narrow issue of information flow to the Board.  Having current management sponsor an investigation of itself using a firm with commercial ties to GM will not result in high confidence in its findings.

In a broader sense this situation models the contours of a wider problem associated with ensuring safety in complex organizational systems.  In the GM case the assurance of a completely objective and thorough investigation seems to come down to the personal integrity of Mr. Valukas.  While we have no reason to doubt his credentials or integrity, he is being placed in a situation where an aggressive investigation could have negative impacts on GM and its management - who are clients of Mr. Valukas’ law firm.  In addition this investigation will involve products liability issues which inevitably involve GM’s internal lawyers; in all probability Valukas’ firm has professional relationships with these lawyers making it a particularly sensitive situation.  It is certainly possible that Mr. Valukas will be immune to any implicit pressures due to these circumstances, but it is an approach that puts maximum reliance on the individual to do the “right” thing notwithstanding competing interests.  And in any event, the perception of an investigation of this type will always be subject to some question where conflicts are present.

We also see an interesting analogy to nuclear operations where the reliance on safety culture is in essence, reliance on personal integrity.  We are not implying there is anything wrong to expect and emphasize personal integrity, however all too often it becomes a panacea for countering significant costs or other impacts to operations and ensuring safety is accorded proper priority.  And if things go wrong, it is the norm that individuals are blamed and often, replaced.  In essence they failed the integrity test.  Why they failed, the elephant in the room, is hardly ever pursued.  Rarely if ever do corrective actions address minimizing or eliminating the influence of those conflicts, leaving the situation ripe for further failures.


*  J.S. Lublin and J. Bennett, “GM Directors Ask Why Cobalt Data Didn't Reach Them,” Wall Street Journal (May 14, 2014).

GM’s CEO Revealing Revelation

GM CEO Mary Barra

As most of our readers are aware General Motors has been much in the news of late regarding a safety issue associated with the ignition switches in the Chevy Cobalt.  At the beginning of April the new CEO of GM, Mary Barra, testified at Congressional hearings investigating the issue.  A principal focus of the hearings was the extent to which GM executives were aware of the ignition switch issues which were identified some ten years ago but did not result in recalls until this February.  Barra has initiated a comprehensive internal investigation of the issues to determine why it took so many years for a safety defect to be announced.

In a general sense this sounds all too familiar as the standard response to a significant safety issue.  Launch an independent investigation to gather the facts and figure out what happened, who knew what, who decided what and why.  The current estimate is that it will take almost two months for this process to be completed.  Also familiar is that accountability inevitably starts (and often ends) at the engineering and low level management levels.  To wit, GM has already announced that two engineers involved in the ignition switch issues have been suspended.

But somewhat buried in Barra’s Congressional testimony is an unusually revealing comment.  According to the Wall Street Journal, Barra said “senior executives in the past were intentionally not involved in details of recalls so as to not influence them.”*  Intentionally not involved in decisions regarding recalls - recalls which can involve safety defects and product liability issues and have significant public and financial liabilities.  Why would you not want the corporation's executives to be involved?  And if one is to believe the rest of Barra’s testimony, it appears executives were not even aware of these issues.

Well, what if executives were involved in these critical decisions - what influence could they have that GM would be afraid of?  Certainly if executive involvement would assure that technical assessments of potential safety defects were rigorous and conservative - that would not be undue influence.  So that leaves the other possibility - that involvement of executives could inhibit or constrain technical assessments from assuring an appropriate priority for safety.  This would be tantamount to the chilling effect popularized in the nuclear industry.  If management involvement creates an implicit pressure to minimize safety findings, there goes the safety conscious work environment and safety.

If keeping executives out of the decision process is believed to yield “better” decisions, it says some pretty bad things about either their competence or ethics.  Having executives involved should at least ensure that they are aware and knowledgeable of potential product safety issues and in a position to proactively assure that decisions and actions are appropriate.   What might be the most likely explanation is that executives don’t want the responsibility and accountability for these types of decisions.  They might prefer to remain protected at the safety policy level but leave the messy reality of comporting those dictates with real world business considerations to lower levels of the organization.  Inevitably accountability rolls downhill to somebody in the engineering or lower management ranks. 

One thing that is certain.  Whatever the substance and process of GM’s decision, it is not transparent, probably not well documented, and now requires a major forensic effort to reconstitute what happened and why.  This is not unusual and it is the standard course in other industries including nuclear generation.  Wouldn’t we be better off if decisions were routinely subject to the rigor of contemporaneous recording including how complex and uncertain safety issues are decided in the context of other business priorities, and by whom?


*  J.B. White and J. Bennett, "Some at GM Brass Told of Cobalt Woe," Wall Street Journal online (Apr. 11, 2014)